Citation Nr: 0524115
Decision Date: 09/01/05 Archive Date: 09/13/05
DOCKET NO. 03-24 112 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUE
Entitlement to a higher initial evaluation for service-
connected type 2 diabetes mellitus, currently evaluated as 10
percent disabling.
ATTORNEY FOR THE BOARD
Nathan Paul Kirschner, Associate Counsel
INTRODUCTION
The veteran served on active duty from September 1968 to
March 1975.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a rating decision of the Regional
Office (RO) of the Department of Veterans Affairs (VA) in
Nashville, Tennessee. In December 2002 the RO granted the
veteran's claim of service connection for diabetes mellitus,
evaluated as 10 percent disabling, effective April 30, 2001.
The Board remanded this appeal to the RO for further
development in June 2004. After the RO attempted the
requested development, the RO continued the denial of a
higher initial evaluation for diabetes mellitus, currently
evaluated as 10 percent disabling. It is noted that the
veteran had previously been represented by a private
attorney, who no longer has authority to represent veterans
before the VA. The veteran was notified of that fact and
given an opportunity to select other representation; however,
he has not indicated that he wants any representation.
FINDING OF FACT
The veteran's diabetes mellitus is manageable by restricted
diet only.
CONCLUSION OF LAW
The criteria necessary for an initial evaluation in excess of
10 percent disabling for the veteran's service-connected
diabetes mellitus have not been met. 38 U.S.C.A. §§ 1155,
5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.119,
Diagnostic Code 7913 (2004).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Higher Initial Evaluation
The veteran argues that an increased evaluation is warranted
for diabetes mellitus.
A review of the record shows that the veteran's diabetes
mellitus was diagnosed in approximately October 2000 and he
has been treated since that time with diet and exercise. See
38 C.F.R. § 4.1.
The Board has reviewed all the evidence in the appellant's
claims folder relating to his claim for a higher initial
evaluation for diabetes mellitus. The evidence includes, but
is not limited to: prior rating decisions; the appellant's
contentions; the appellant's records from the Social Security
Administration; multiple VA progress notes; and a VA Diabetes
Mellitus examination report from February 2003.
Although the Board has an obligation to provide reasons and
bases supporting this decision, there is no need to discuss,
in detail, the extensive evidence submitted by the appellant
or on his behalf. Rather, the Board's analysis below will
focus specifically on what the evidence shows, or fails to
show, regarding the veteran's claim for an increased
evaluation for diabetes mellitus.
The relevant medical evidence therefore includes a VA
Diabetes Mellitus examination report from February 2003 and
numerous VA progress notes. The VA progress notes also
generally showed that the veteran was diagnosed with diabetes
mellitus and that it was controlled with diet and exercise.
Also on file are extensive medical records obtained from the
Social Security Administration which pertain to other
disability and will not be discussed.
The February 2003 VA Diabetes Mellitus examination report
showed that the examiner gave an impression of "diabetes
type II controlled by diet and exercise." The examiner also
remarked that the veteran had retired on disability in
November 2001, which was related to his PTSD. The veteran
stated that his blood sugar was usually running between 111
and 118. This was very well controlled "as evidenced by
hgblac as above." The veteran had a chronic left foot drop
due to a previous injury.
Disability evaluations are determined by the application of
VA's Schedule for Rating Disabilities which is based on the
average impairment of earning capacity. Separate diagnostic
codes identify the various disabilities. 38 U.S.C.A. § 1155;
38 C.F.R. § 4.1 (2004). The veteran is appealing the
original assignment of a disability evaluation following
awards of service connection. In such a case, it is not the
present level of disability which is of primary importance,
but rather the entire period is to be considered to ensure
that consideration is given to the possibility of staged
ratings; that is, separate ratings for separate periods of
time based on the facts found. See Fenderson v. West, 12
Vet. App. 119, 126 (1999).
Under 38 C.F.R. § 4.119, DC 7913 (as in effect prior to
August 30, 2002) diabetes mellitus: manageable by restricted
diet only warrants a 10 percent evaluation. A 20 percent
rating is warranted for diabetes mellitus requiring insulin
and restricted diet, or; oral hypoglycemic agent and
restricted diet.
The evidence is not sufficient to warrant a rating in excess
of 10 percent under DC 7913. The evidence does not show that
the veteran's diabetes required treatment with insulin or an
oral hypoglycemic agent. In fact, it shows that the
veteran's diabetes mellitus is controlled by diet and
exercise. See VA Diabetes Mellitus examination report dated
in February 2003. As such, an evaluation in excess of 10
percent is not warranted.
A higher evaluation is not warranted under any other
potentially applicable diagnostic code. See Schafrath v.
Derwinski, 1 Vet. App. 589 (1995).
Since the veteran's condition has been clearly diagnosed as
diabetes mellitus, no other diagnostic codes relating to the
endocrine system apply. See 38 C.F.R. § 4.119 (2004). Also,
because the veteran does not suffer from compensable
complications of diabetes, no separate evaluations are
warranted. See 38 C.F.R. § 4.119, DC 7913 (Note 1) (2004).
The Board has also considered whether the record raises the
matter of an extraschedular rating under 38 C.F.R. §
3.321(b)(1). However, there is no competent evidence that
the veteran's diabetes mellitus causes "marked" interference
with employment or requires frequent hospitalizations or
otherwise produces unrecognized impairment suggesting
extraschedular consideration is indicated.
In reaching this decision regarding this claim for a higher
initial evaluation, the Board has considered the veteran's
statements. However, the preponderance of the evidence is
against the claim. The Board has also considered the
benefit-of-the-doubt rule; however, as the preponderance of
the evidence is against the appellant's claim, such rule is
not for application in this case. 38 U.S.C.A. § 5107(b)
(West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
II. VCAA
On November 9, 2000, the President signed into the law the
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§
5100, 5102-5103A, 5106, 5107, 5126 (West 2002)). The VCAA
imposes obligations on VA in its duty to notify and assist
claimants.
Under the VCAA, when VA receives a complete or substantially
complete application for benefits, it is required to notify
the claimant and his representative, if any, of any
information and medical or lay evidence that is necessary to
substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002);
38 C.F.R. § 3.159(b) (2004); Quartuccio v. Principi, 16 Vet.
App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112,
120-21 (2004), the United States Court of Appeals for
Veterans Claims (Court) held that VA must inform the claimant
of any information and evidence not of record (1) that is
necessary to substantiate the claim; (2) that VA will seek to
provide; and (3) that the claimant is expected to provide.
The Court also held that VA must request that the claimant
provide any evidence in his possession that pertains to the
claim. Id. This "fourth element" comes from the language
of 38 C.F.R. § 3.159(b)(1).
The Board finds that the VCAA notice requirements have been
satisfied by virtue of a letter sent to the veteran in August
2003. Since the letter fully provided notice of elements
(1), (2), and (3), see above, it is not necessary for the
Board to provide extensive reasons and bases as to how VA has
complied with the VCAA's notice requirements. See Mayfield
v. Nicholson, 19 Vet. App. 103 (2005).
With respect to element (4), the Board notes that the RO's
August 2003 letter informed the veteran that he should send
information describing additional evidence or the evidence
itself to the VA. In addition, he was supplied with the
complete text of 38 C.F.R. § 3.159(b)(1) by way of a July
2003 statement of the case (SOC).
The VA also has a duty to assist the appellant in obtaining
evidence necessary to substantiate the claims. Here, the RO
satisfied its duty to assist the veteran by obtaining his
available service, VA and non-VA medical records. The
veteran has been afforded VA examinations. The Board
concludes, therefore, that a decision on the merits at this
time does not violate the VCAA, nor prejudice the appellant
under Bernard v. Brown, 4 Vet. App. 384 (1993).
The Court in Pelegrini also held, in part, that a VCAA
notice, as required by 38 U.S.C. § 5103(a), must be provided
to a claimant before the initial unfavorable agency of
original jurisdiction (AOJ) decision on a claim for VA
benefits. In this case, the initial AOJ decision was made
prior to the veteran having been fully informed of the VCAA.
However, the Board finds that any defect with respect to the
VCAA notice requirement in this case was harmless error.
The appellant has been provided "a meaningful opportunity to
participate effectively in the processing of [his] claim by
VA." Mayfield, 19 Vet. App. at 128. Therefore, "[t]he
timing-of-notice error was thus nonprejudicial in this
case." Mayfield, 19 Vet. App. at 128, (holding that section
5103(a) notice provided after initial RO decision can
"essentially cure[] the error in the timing of notice" so
as to "afford[] a claimant a meaningful opportunity to
participate effectively in the processing of ... claim by VA")
(citing Pelegrini, 18 Vet. App. at 122-24). In light of the
content-complying notice that the RO provided prior to
sending the case to the Board for de novo review, the
appellant was not prejudiced by the delay in providing
content-complying notice, because, under these circumstance,
"the error did not affect the essential fairness of the
adjudication", Mayfield, supra (holding timing-of-notice
error nonprejudicial where fairness of adjudication was
unaffected because appellant was able to participate
effectively in processing of claim).
ORDER
A higher initial evaluation in excess of 10 percent for
service-connected type 2 diabetes mellitus is denied.
____________________________________________
C. W. SYMANSKI
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs